CASES ON ELECTION LAW 1st MARCOS YRA VS. MAXIMO ABAO GR No. 30187. November 15, 1928.

Ponente: Malcolm, J. Facts: Abao is a native of the municipality of Meycauayan, Bulacan. He transferred to Manila to complete his education. While residing in Manila, he registered as a voter there. Shortly after qualifying as a member of the bar and after the death of his father, he returned to Meycauayan to live. From May 10, 1927, he considered himself a resident of Meycauayan. When the 1928 elections were approaching, he made an application for cancellation of registration in Manila which was dated April 3, 1928, but this was rejected by the city officials for the reason that it was not deposited in the mails on or before April 4, 1928. Nevertheless, he presented himself as a candidate for municipal president of Meycauayan in the 1928 elections and was elected by popular vote to that office. Marcos Yra, vice-president elect of Meycauayan challenged the right of Maximo Abao on the ground that the latter is ineligible. RTC Judge Anastacio Teodoro ruled in favor of Abao. Issue: Whether or not Maximo Abao was eligible to hold said office. Held: YES. The Election Law, as amended, in section 404 provides that No person shall be eligible for any elective municipal office unless, within the time fixed by law, he shall file a duly sworn certificate of candidacy. Said certificate shall declare that he is a resident of the municipality in which his candidacy is offered; that he is a duly qualified elector therein, and that he is eligible to the office. The Administrative Code in section 2174, in giving the qualifications of elective officers, also provides that an elective municipal officer must, at the time of the election, be a qualified voter in his municipality and must have been resident therein for at least one year According to Sen. Jose P. Laurel, in his Law of Elections of the PH Islands: One of the qualifications required by law of a person who announces his candidacy is that he must be a duly qualified elector. The Executive Bureau has held that the term "qualified" when applied to a voter does not necessarily mean that a person must be a registered voter. To become a qualified candidate a person does not need to register as an elector. It is sufficient that he possesses all the qualifications prescribed in section 431 and none of the disqualifications prescribed in section 432. The fact that a candidate failed to register as an elector in the municipality does not deprive him of the right to become a candidate to be voted for. Ones eligibility is not affected by his failure to register. The act of registering is only one step towards voting, and it is not one of the elements that makes the citizen a qualified voter. One may be a qualified voter without exercising the right to vote. Registering does not confer the right; it is but a condition precedent to the exercise of the right. Registration regulates the exercise of the right of suffrage but it is not a qualification for such right. Hence, the will of the electorate should be respected. AKBAYAN Youth, et al., petitioners vs. COMMISSION ON ELECTIONS, respondents March 26, 2001 PONENTE: Buena FACTS: ELECTION CASES - MMCN

Petitioners representing the youth sector seek to direct the COMELEC to conduct a special registration before the May 14, 2001 General Elections, of new voters ages 18 to 21. According to petitioners, around four million youth failed to register on or before the December 27, 2000 deadline set by the respondent COMELEC under Republic Act No. 8189. COMELEC called a consultation meeting among regional heads and representatives and a number of senior staff. It was the consensus of the group, to disapprove the request for additional registration of voters on the ground that Section 8 of R.A. 8189 explicitly provides that no registration shall be conducted during the period starting one hundred twenty (120) days before a regular election and that the Commission has no more time left to accomplish all preelection activities. On February 8, the COMELEC issued Resolution No. 3584, denying the request to conduct a two-day additional registration on February 17 and 18. Aggrieved by the denial, petitioners filed the instant Petition for Certiorari and Mandamus, which seeks to set aside and nullify respondent COMELECs Resolution and/or to declare Section 8 of R. A. 8189 unconstitutional insofar as said provision effectively causes the disenfranchisement of petitioners and others similarly situated. Petitioners invoke the so called standby powers or residual powers of the COMELEC. ISSUE: a.)

Whether respondent COMELEC committed grave abuse of discretion in issuing COMELEC Resolution denying the request. NO Whether the SC can compel respondent COMELEC, through the extraordinary writ of mandamus, to conduct a special registration of new voters. NO

b.)

HELD: In a representative democracy such as ours, the right of suffrage, although accorded a prime niche in the hierarchy of rights embodied in the fundamental law, ought to be exercised within the proper bounds and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature. To be sure, the right of suffrage ardently invoked by petitioners is not at all absolute. Needless to say, the exercise of the right of suffrage, as in the enjoyment of all other rights, is subject to existing substantive and procedural requirements embodied in our Constitution, statute books and other repositories of law. Substantially, the requirements for the right of suffrage are in Section 1, Article V of the Constitution. (citizen, at least 18 y.o., 1 year-residency in the Phil, 6 months-residency in the place where to vote, not disqualified by law). As to the procedural limitation, the right of a citizen to vote is necessarily conditioned upon certain procedural requirements he must undergo: among others, the process of registration required under Sec.8 of Republic Act No. 8189, otherwise known as the Voters Registration Act of 1996. The act of registration is an indispensable precondition to the right of suffrage. Section 8 of R.A. 8189 applies in the present case. The stand-by power of the respondent COMELEC under Section 28 of R.A. 8436, presupposes the possibility of its being exercised or availed of, and not otherwise. The petitioners in the instant case are not without fault or blame. They admit in their petition that they failed to register, for whatever reason, within the period of registration and came to this Court and invoked its protective mantle not realizing, so to speak, the speck in their eyes. Impuris minibus nemo accedat curiam. Let no one come to court with unclean hands. In a similar vein, well-entrenched is the rule in our jurisdiction that the law aids the vigilant and 1

not those who slumber on their rights. Vigilantis sed non dormientibus jura in re subveniunt. Respondent COMELEC did not commit an abuse of discretion, much less be adjudged to have committed the same in some patent, whimsical and arbitrary manner, in issuing Resolution No. 3584. The COMELEC acted within the bounds and confines of the applicable law on the matter -Section 8 of RA 8189. In issuing the assailed Resolution, respondent COMELEC simply performed its constitutional task to enforce and administer all laws and regulations relative to the conduct of an election. As to petitioners prayer for the issuance of the writ of mandamus, the Court cannot, in view of the very nature of such extraordinary writ, issue the same without transgressing the timehonored principles in this jurisdiction. Petition DENIED. VILLABER vs. COMELEC GR No. 148326, November 15, 2001 PONENTE: Sandoval-Guittierez FACTS: Petitioner Pablo Villaber and respondent Douglas Cagas were rival candidates for a congressional seat in the 1st District of Davao Del Sur during the 2001 elections. Cagas filed a petition to disqualify Villaber and to cancel the latters certificate of candidacy. He alleged in the said petition that Villaber was convicted for violation of Batas Pambansa Blg. 22, a crime which, according to Cagas, involves moral turpitude. In his answer to the disqualification suit, Villaber countered that his conviction has not become final and executor because the decision was not remanded to the trial court for promulgation in his presence. Furthermore, he averred that this cannot be the basis for his disqualification since BP Blg. 22 does not involve moral turpitude. COMELEC disqualified Villaber, ruling that a violation of BP Blg. 22 involves moral turpitude. Section 12 of the Omnibus Election Code provides that any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion, or for any offense for which he has been sentenced to a penalty of more than eighteen months, or for a crime involving moral turpitude shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. ISSUE: Whether a violation of BP 22 Blg 22 involves moral turpitude HELD: YES. One of the elements of the offense is that the accused knows at the time of the issuance of the check that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of check in full upon its presentment. This element manifests moral turpitude. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public since circulation of valueless commercial papers can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and public interest. As to the meaning of moral turpitude, the Court has consistently adopted the definition in Blacks Law Dictionary as an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals. ELECTION CASES - MMCN

Petitioner also contents that the pronouncement in People v. Atty. Fe Tuanda insofar as it states that conviction under BP 22 involves moral turpitude does not apply to him since he is not a lawyer. The Court finds this contention erroneous as the Court did not make a distinction whether the offender is a lawyer or a non-lawyer. Nor did it declare that such offense constitutes moral turpitude when committed by a member of the Bar but is not so when committed by a nonmember. Labo vs Comelec July 3, 1992 Ponente: BIDIN J. Facts: Ramon Labo was a candidate for mayor of Baguio city in the May 11, 1992 elections. On on March 26, 1992 a disqualification case was filed against him by private respondent Roberto Ortega, who was also a candidate for the same position, alleging that petitioner is not aFilipino citizen. On March 27 and April 1, respondent COMELEC issued orders requiring Labo to answer the charges but the latter did not respond. On April 24, the COMELEC issued another order directing the Election Registrar of Baguio City to personally deliver the summons. On May 4, 1992 the disqualification case was set for reception of evidence. Ortega therein presented the decided case of Labo vs COMELEC, the Court ruling that LAbo is not a Filipino citizen. Still, Labo did not present any evidence to answer the allegation. On May 9, the COMELEC issued the assailed decision disqualifying Labo as a candidate for the position of Mayor of Baguio City. On the same day, Labo filed a motion to stay the implementation of the decision. Acting on his motion, the COMELEC issued a resolution allowing Labo to continue to be voted upon as candidate for City Mayor of Baguio subject to the final outcome of the case in the event the isse is elevated to the Supreme Court, either on appeal or certiorari. On May 13, the COMELEC suspended the proclamation of LABO after he received the highest number of votes in the election. On May 15 Labo filed a petition with the COMELEC praying that he be declared as a Filipino citizen, that the May 9 resolution be set aside and to proceed with his proclamation in the event he wins the elections. ON the same day Ortega filed an urgent motion to have the May 9 resolution implemented. Here, Labo argues that he is a Filipino citizen by virtue of Sec 72 of the Omnibus election code as it operates as a legislatively mandated special repatriation proceeding and that it allows hi s proclamation as the winning candidate since the resolution disqualifying him as not yet final at the time the election was held. Also, petitioner argues that the principle of res judicata does not apply in citizenship. Issue: whether Labo is a Filipino citizen because he won the elections and was overwhelmingly voted upon by the citizens of Baguio city Held: No, Sec 72 of the OEC has already been repealed by Sec 6 of RA 6646 which states: .if for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or the Commission shall continue with trial and hearing of the action, inquiry or protest and upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. As was ruled in the earlier case of Labo vs Comelec, citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. It does not appear in the record , nor does petitioner claim that he has reacquired Philippine citizenship by any of these methods. Labo was disqualified as a candidate. His election does not automatically restore his Philippine citizenship, the possession of which is an indispensible requirement for holding public office. The will of the people expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in 2

the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. Sec. 39 of the OEC: Qualifications: an elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, panlungsod or bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. DELA CRUZ vs COMELEC November 13, 2012 PONENTE: Villarama, JR FACTS: In the 2001, 2004 and 2007 elections, petitioner Casimira Dela Cruz ran for and was elected member of the Sangguniang Bayan (SB) of Bugasong, Antique. Petitioner filed her certificate of candidacy for the position of Vice-Mayor of the Municipality of Bugasong for the 2010 elections. Subsequently, Aurelio Dela Cruz also filed a certificate of candidacy for the same position. Petitioner filed a petition to declare Aurelio a nuisance candidate on the ground that he filed his CoC to put the election process in mockery and to cause confusion among voters due to the similarity of their surnames. The COMELEC issued a resolution declaring Aurelio as a nuisance candidate and cancelling his CoC. However, his name was not deleted in the certified list of candidates. Petitioner lost in the election by a margin of 39 votes. She contends that she would have clearly won had the votes cast for Aurelio, totalling 532, were properly tallied in her favor. ISSUE: Whether or not the votes cast for Aurelio should be counted in favor of petitioner Casimira? HELD: In the case of Martinez III vs. HRET, the Court applied the rule in COMELEC Resolution No. 4116 not to consider the votes cast for a nuisance candidate stray but to count them in favor of the bona fide candidate. Aurelio was declared a nuisance candidate long before the May 10, 2010 elections. On the basis of Resolution No. 4116, the votes cast for him should not have been considered stray but counted in favor of petitioner. Petitioner was declared as the dulyelected Vice-Mayor of the Municipality of Bugasong, Antique. At this point, we must stress that a Section 78 petition ought not to be interchanged or confused with a Section 68 petition. They are different remedies, based on different grounds, and resulting in different eventualities. To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. Clearly, a petition to cancel or deny due course to a COC under Section 69 as in Section 78 cannot be treated in the same manner as a petition to disqualify under Section 68 as what COMELEC did when it applied the rule provided in Section 72 that the votes cast for a disqualified candidate be considered stray, to those registered candidates whose COCs had been cancelled or denied due course. Strictly speaking, a cancelled certificate cannot give rise to a valid candidacy, and much less to valid votes. Said votes cannot be counted in favor of the candidate whose COC was cancelled as he/she is not treated as a candidate at all, as if he/she never filed a COC. But should these votes cast for the candidate whose COC was cancelled or denied due course be considered stray? ELECTION CASES - MMCN

COMELEC: the decision or resolution of a DIVISION on nuisance candidate, particularly where the nuisance candidate has the same name as the bona fide candidate shall be immediately executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed. In which case, the votes cast shall not be considered stray but shall be counted and tallied for the bona fide candidate. A stray vote is invalidated because there is no way of determining the real intention of the voter. We hold that the rule in Resolution No. 4116 considering the votes cast for a nuisance candidate declared as such in a final judgment, particularly where such nuisance candidate has the same surname as that of the legitimate candidate, not stray but counted in favor of the latter, remains a good law. As earlier discussed, a petition to cancel or deny a COC under Section 69 of the OEC should be distinguished from a petition to disqualify under Section 68. Hence, the legal effect of such cancellation of a COC of a nuisance candidate cannot be equated with a candidate disqualified on grounds provided in the OEC and Local Government Code Moreover, private respondent admits that the voters were properly informed of the cancellation of COC of Aurelio because COMELEC published the same before election day. Finally, upholding the former rule in Resolution No. 4116 is more consistent with the rule wellensconced in our jurisprudence that laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities.32 Indeed, as our electoral experience had demonstrated, such infirmities and delays in the delisting of nuisance candidates from both the Certified List of Candidates and Official Ballots only made possible the very evil sought to be prevented by the exclusion of nuisance candidates during elections. Consequently, the 532 votes cast for Aurelio N. Dela Cruz during the elections of May 10, 2010 should have been counted in favor of Casimira S. Dela Cruz and not considered stray votes, making her total garnered votes 6,921 as against the 6,428 votes of private respondent John Lloyd M. Pacete who was the declared winner.

2nd: VETERANS FEDERATION PARTY VS. COMELEC PANGANIBAN 342 SCRA 247, October 6, 2000 (Constitutional Law Party List Representatives, 20% Allocation) FACTS: Petitioner assailed public respondent COMELEC resolutions ordering the proclamation of 38 additional party-list representatives to complete the 52 seats in the House of Representatives as provided by Sec 5, Art VI of the 1987 Constitution and RA 7941. On the other hand, Public Respondent, together with the respondent parties, avers that the filling up of the twenty percent membership of party-list representatives in the House of Representatives, as provided under the Constitution, was mandatory, wherein the twenty (20%) percent congressional seats for party-list representatives is filled up at all times. ISSUE: Whether or not the twenty percent allocation for party-list lawmakers is mandatory. 3

HELD: No, it is merely a ceiling for the party-list seats in Congress. The same declared therein a policy to promote proportional representation in the election of party-list representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors to contribute legislation that would benefit them. It however deemed it necessary to require parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat. Those garnering more than this percentage could have additional seats in proportion to their total number of votes. Furthermore, no winning party, organization or coalition can have more than three seats in the House of Representatives (sec 11(b) RA 7941). Note: Clearly, the Constitution makes the number of district representatives the determinant in arriving at the number of seats allocated for party-list lawmakers, who shall comprise twenty per centum of the total number of representatives including those under the party-list. We thus translate this legal provision into a mathematical formula, as follows: No. of district representatives - x .20 = No. of party-list .80 representatives This formulation means that any increase in the number of district representatives, as may be provided by law, will necessarily result in a corresponding increase in the number of party-list seats. To illustrate, considering that there were 208 district representatives to be elected during the 1998 national elections, the number of party-list seats would be 52, computed as follows: 208 x .20 = 52 .80 The foregoing computation of seat allocation is easy enough to comprehend. The problematic question, however, is this: Does the Constitution require all such allocated seats to be filled up all the time and under all circumstances? Our short answer is No. BANAT vs. COMELEC GR 17927 [ April 21, 2009 ] CARPIO Facts: Barangay Association for National Advancement and Transparency (BANAT) filed before the Commission on Elections (COMELEC) a petition to proclaim the full number of party list representatives provided by the Constitution. However, the recommendation of the head of the legal group of COMELECs national board of canvassers to declare the petition moot and academic was approved by the COMELEC en banc, and declared further in a resolution that the ELECTION CASES - MMCN

winning party list will be resolved using the Veterans ruling. BANAT then filed a petition before the SC assailing said resolution of the COMELEC. Issues: (1) Is the 20% allocation for party-list representatives provided in Sec 5 (2), Art VI of the Constitution mandatory or is it merely a ceiling? (2) Is the 2% threshold and qualifier votes prescribed by the same Sec 11 (b) of RA 7941 constitutional? (3) Does the Constitution prohibit major political parties from participating in the party-list elections? If not, can major political parties participate in the party-list elections? Held: (1) Neither the Constitution nor RA 7941 mandates the filling up of the entire 20% allocation of party-list representatives found in the Constitution. The Constitution, in paragraph 1, Sec 5 of Art VI, left the determination of the number of the members of the House of Representatives to Congress. The 20% allocation of party-list representatives is merely a ceiling; party-list representatives cannot be more then 20% of the members of the House of Representatives. (2)No. We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Sec 11(b) of RA 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party-list seats when the available party-list seat exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives. We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Sec 11 (b) of RA 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Sec 5 (2), Art VI of the Constitution and prevents the attainment of the-broadest possible representation of party, sectoral or group interests in the House of Representatives. (3) No. Neither the Constitution nor RA 7941 prohibits major political parties from participating in the party-list system. On the contrary, the framers of the Constitution clearly intended the major political parties to participate in party-list elections through their sectoral wings. However, by vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections, directly or indirectly. Atong Paglaum v. Commission on Elections CARPIO Background of the case

52 party-list groups and organizations filed separate petitions totaling 54 with the Supreme Court (SC) in an effort to reverse various resolutions by the Commission on Elections (Comelec) disqualifying them from the May 2013 party-list race. The Comelec, in its assailed resolutions issued in October, November and December of 2012, ruled, among others, that these party-list groups and organizations failed to represent a marginalized and underrepresented sector, their nominees do not come from a marginalized and underrepresented sector, and/or some of the organizations or groups are not truly representative of the sector they intend to represent in Congress.

Petitioners argued that the poll body committed grave abuse of discretion in denying some of the 4

petitioners application for accreditation and cancelling the existing accreditation of the rest. They also lamented the poll bodys denial to accord them due process in the evaluation proceedings.

The question is: where does representation of marginalized and underrepresented sectors come in?

The high court consolidated these cases; Senior Associate Justice Antonio Carpio was tasked as the Member-in-charge of the case.

The answer: on the sectoral parties or organizations that intend to participate in the party-list system.

Status quo ante orders (SQAO) were issued in all 54 petitions which restored the status quo prior to the disqualification of petitioners. However, only 39 of the 52 petitioners or only 41 petitions were able to secure a mandatory injunction, directing the Comelec to include their names in the printing of official ballots.

The high court held that purely sectoral parties or organizations may either represent marginalized and underrepresented constituencies or those lacking well -defined political constituencies. The high court went on to enumerate marginalized and underrepresented sectors, as follows: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors that lack well -defined political constituencies include professionals, the elderly, women, and the youth.

THE RULING The rule on nominees and members coming from the sector they intend to represent also applies only to the sectoral parties or organizations. The high court ruled that it is enough that [a] majority of the members of the sectoral parties or organizations must belong to the marginalized and underrepresented sector they represent. The same is true for those who lack well-defined political constituencies.

In a Decision promulgated on April 2, 2013, the high court, through Carpios ponencia, ruled in favor of the 54 petitions and remanded these petitions to the Comelec. The party-list groups and organizations covered by the 41 petitions that obtained mandatory injunction orders from the high court still stand a chance to make it to the 2013 party-list race as the high court ordered the poll body to determine whether petitioners are qualified to register under the party -list system and to participate in the 13 May 2013 party-list elections under the new parameters set forth in the Decision. The rest, meaning, the 13 other petitions, were remanded to the poll body merely for purposes of determining whether they may be granted accreditation under the new parameters but may not participate in the May 2013 elections.

As for the nominees of these sectoral parties and organizations, the new guidelines provide that they must either be members of the sector or have a track record of advocacy for their sector.

The Decision, however, clarified that the poll body may not be faulted for acting on the basis of previous rulings (Ang Bagong Bayani, BANAT) of the high court regarding the party-list system. These earlier rulings enumerated guidelines on who may participate in the party-list system.

Should some of the nominees of these national, regional, and sectoral parties or organizations be disqualified, the party or organization itself will not be disqualified provided that they have at least one nominee who remains qualified.

The party-list system, according to the Decision New parameters set forth in the Decision on who may participate in the May 2013 partylist race and subsequent party-list elections Quoting Christian Monsod, the main proponent of the party-list system, the high court stated that it is not synonymous with that of the sectoral representation. The high court stressed that the framers of the 1987 Constitution did not intend to leave out non-sectoral parties in the party-list system and exclusively limit it to sectoral groups.

The Decision identified three groups that may participate in the party-list system: (1) national parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

On the part of national parties or organizations and regional parties or organizations which intend to participate in the party-list race, the new guidelines state that these parties do not need to organize along sectoral lines and do not need to represent any marginalized or underrepresented sector.

The framers intended the sectoral parties to constitute a part, but not the entirety, of the party list system In fact, the framers voted down , 19-22, a proposal to reserve the party-list system exclusively to sectoral parties.

As for political parties, they may participate in the party-list race by registering under the partylist system and no longer field congressional candidates. These parties, if they field congressional candidates, however, are not barred from participating in the party-list elections; what they need to do is register their sectoral wing or party under the party-list system. This sectoral wing shall be considered an independent sectoral party linked to a political party through a coalition. ELECTION CASES - MMCN

There can be no doubt whatsoever that the framers of the 1987 Constitution expressly rejected the proposal to make the party-list system exclusively for sectoral parties only, and that they clearly intended the party-list system to include both sectoral and non-sectoral parties, the Decision read.

To amplify its position, the high court pointed out Sec. 5(1), Art. VI of the 1987 Constitution, 5

which states:

As for BANAT, incidentally also penned by Carpio, the high court said that the guidelines in this ruling merely formalized the prevailing practice when it prohibited major political parties from participating in the party-list elections even if through their allied sectoral organizations. 3rd Chavez vs. COMELEC , GR 162777, Aug 31, 2004 Azcuna Petitioner seeks to enjoin the Commission on Elections (COMELEC) from enforcing Section 32 of its Resolution No. 6520. He claims that said section in the nature of an ex post facto law. He urges this Court to believe that the assailed provision makes an individual criminally liable for an election offense for not removing such advertisement, even if at the time the said advertisement was exhibited, the same was clearly legal. Section 32. All propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image, or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office shall be immediately removed by said candidate and radio station, print media or television station within 3 days after the effectivity of these implementing rules; otherwise, he and said radio station, print media or television station shall be presumed to have conducted premature campaigning in violation of Section 80 of the Omnibus Election Code. ISSUE: Is Sec. 32 of COMELEC Res. No. 6520 in the nature of an ex post facto law?

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

The Decision also pointed out pertinent provisions of Republic Act (RA) No. 7941, also known as the Party-list System Act, specifically from Sec. 3 (Definition of Terms):

(b) A party means either a political party or a sectoral party or a coalition of parties

(c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office

(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector

Again, the high court noted that defining these parties or groups, one from the others, could only mean that they are not one and the same.

Previous rulings reversed by Atong Paglaum

As earlier stated, there are previous rulings on the party-list system in the case of Ang Bagong Bayani v. Comelec and BANAT v. Comelec

HELD: NO. Section 32, although not penal in nature, defines an offense and prescribes a penalty for said offense. Laws of this nature must operate prospectively, except when they are favorable to the accused. It should be noted, however, that the offense defined in the assailed provision is not the putting up of "propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office." Nor does it prohibit or consider an offense the entering of contracts for such propaganda materials by an individual who subsequently becomes a candidate for public office. One definitely does not commit an offense by entering into a contract with private parties to use his name and image to endorse certain products prior to his becoming a candidate for public office. The offense, as expressly prescribed in the assailed provision, is the non-removal of the described propaganda materials three (3) days after the effectivity of COMELEC Resolution No. 6520. If the candidate for public office fails to remove such propaganda materials after the given period, he shall be liable under Section 80 of the Omnibus Election Code for premature campaigning. Indeed, nowhere is it indicated in the assailed provision that it shall operate retroactively. There is, therefore, no ex post facto law in this case. Under the Omnibus Election Code, election campaign or partisan political activity is defined as an act designed to promote the election or defeat of a particular candidate or candidates to a public office. Activities included under this definition are: (1) Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against 6

In Ang Bagong Bayanis parameters for the party-list system, guideline 2 states that while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling Filipino citizens belonging to marginalized and underrepresented sectors to be elected to t he House of Representatives.

However, in its latest Decision, in Atong Paglaum, the high court pointed out that there was an inherent inconsistency in the Ang Bagong Bayani guidelines since the requirement that the major political parties should represent the marginalized and underrepresented sectors essentially automatically disqualified these major parties from the party-list system.

ELECTION CASES - MMCN

the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate

Sec. 80. Election campaign or partisan political activity outside campaign period. It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period. SECTION 3. Lawful Election Propaganda. -- Election propaganda, whether on television, cable television radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC). For the purpose of this Act, lawful election propaganda shall include: 3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one half inches in width and fourteen inches in length; 3.2. Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office; 3.3. Cloth, paper or cardboard posters whether framed or posted, with an area not exceeding two(2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally; 3.4. Paid advertisements in print or broadcast media: Provided, That the advertisements shall follow the requirements set forth in Section 4 of this Act; and 3.5. All other forms of election propaganda not prohibited by the Omnibus Election Code or this Act. Penera vs. Comelec and Andanar: Premature Campaigning CARPIO September 19, 2009 The Supreme Court has strengthened the prohibition on premature campaigning and has disqualified the Mayor of Sta. Monica, Surigao del Norte by reason thereof. In its Decision promulgated last September 11, 2009, the High Court dismissed the petition for Certiorari filed by petitioner Rosalinda A. Penera and upheld the Resolution of the COMELECs Second Division and En Banc respectively, finding her guilty of premature campaigning for violating Section 80 of the Omnibus Election Code during the 2007 elections. ELECTION CASES - MMCN

Penera and private respondent Edgar T. Andanar were mayoralty candidates in Sta. Monica during the 14 May 2007 elections. On 2 April 2007, Andanar filed before the Office of the Regional Election Director (ORED), Caraga Region (Region XIII), a Petition for Disqualification against Penera, as well as the candidates for Vice-Mayor and Sangguniang Bayan who belonged to her political party, for unlawfully engaging in election campaigning and partisan political activity prior to the commencement of the campaign period. Andanar claimed that on 29 March 2007 a day before the start of the authorized campaign period on 30 March 2007 Penera and her partymates went around the different barangays in Sta. Monica, announcing their candidacies and requesting the people to vote for them on the day of the elections.

Penera alone filed an Answer denying the charges but admitted that a motorcade did take place and that it was simply in accordance with the usual practice in nearby cities and provinces, where the filing of certificates of candidacy (COCs) was preceded by a motorcade, which dispersed soon after the completion of such filing. The COMELEC disqualified Penera but absolved the other candidates from Peneras party from violation of section 80 and 68 of the Omnibus Election Code.

In denying Peneras petition, the Supreme Court, through Associate Justice Minita V. ChicoNazario, found that Penera and her witnesses admitted that the vehicles, consisting of two jeepneys and ten motorcycles, were festooned with multi-colored balloons; the motorcade went around three barangays in Sta. Monica; and Penera and her partymates waved their hands and threw sweet candies to the crowd. Thus, for violating Section 80 of the Omnibus Election Code, proscribing election campaign or partisan political activity outside the campaign period, Penera was disqualified from holding the office of Mayor of Sta. Monica.

As to the questions of law involved in the case, the Court tackled the legal issue that Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, provides a new definition of the term candidate, as a result of which, premature campaigning may no longer be committed and that because of the said provision, the prohibited act of premature campaigning in Section 80 of the Omnibus Election Code, is practically impossible to commit at any time. In this regard, the Court disagreed, declaring that there is no absolute and irreconcilable incompatibility between Section 15 of Republic Act No. 8436, as amended, and Section 80 of the Omnibus Election Code, which defines the prohibited act of premature campaigning. It is possible to harmonize and reconcile these two provisions and, thus, give effect to both.

The Court held, further, that:

True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the filing of the COC but before the start of the campaign period, a person is not yet officially considered a candidate. Nevertheless, a person,upon the filing of his/her COC, already explicitly declares his/her intention to run as a candidate in the coming elections. The commission by such a person of any of the acts enumerated under Section 79(b) of the Omnibus Election Code (i.e., holding rallies or parades, making speeches, etc.) can, thus, be logically and reasonably construed as for the purpose of promoting his/her intended candidacy.

When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC 7

and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified. Also, conversely, if said person, for any reason, withdraws his/her COC before the campaign period, then there is no point to view his/her acts prior to said period as acts for the promotion of his/her election as a candidate. In the latter case, there can be no premature campaigning as there is no candidate, whose disqualification may be sought, to begin with.

Facts: Petitioner, Social Weather Stations, Inc. (SWS) is a private non-stock, non-profit social research institution conducting surveys in various fields. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation. Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing Section 5.4 of RA. No.9006 (Fair Election Act), which provides that: Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile voting process posed by election surveys. No similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. They contend that there is no reason for ordinary voters to be denied access to the results of election surveys, which are relatively objective. Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. Issue:

Third, in connection with the preceding discussion, the line in Section 15 of Republic Act No. 8436, as amended, which provides that any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period, does not mean that the acts constituting premature campaigning can only be committed, for which the offender may be disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in the said proviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity. However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy.

As can be gleaned from the foregoing disquisition, harmony in the provisions of Sections 80 and 79 of the Omnibus Election Code, as well as Section 15 of Republic Act No. 8436, as amended, is not only very possible, but in fact desirable, necessary and consistent with the legislative intent and policy of the law.

Given this Decision, however, it is not yet clear what action the COMELEC will take with regard to the numerous infomercials made by possible candidates in the May 2010 elections. Moreover, there is a possibility that the Court may reconsider its Decision because of the close 8-7 vote among the Justices.

whether or not Section 5.4 of RA 9006 constitutes an unconstitutional abridgment of freedom of speech, expression and the press? Held: Based on the above reasons (petitioner), yes, it constitutes an unconstitutional abridgement of freedom of expression, speech and the press. To summarize, the Supreme Court held that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression.

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent. ELECTION CASES - MMCN

Section 5.4 lays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election seven (7) days before a local election. Because of tile preferred status of tile constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. Any system of 8

prior restraints of expression comes to this Court bearing a heavy Presumption against its constitutional validity. The Government thus carries a heavy burden of showing justification for in enforcement of such restraint. Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in sustaining tile ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and reasonable rates of charges for the use of such media facilities "public information campaigns and forums among candidates." MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of 5.4. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations. Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and balancing the circumstances to determine whether public interest is served by the regulation of the free enjoyment of the rights". The dissenting opinion simply concludes that the objectives of Section 5.4 are valid. It may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. As already stated, the purpose of Art. IX-C, 4 is to "ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefore for public information campaigns and forums among candidates". Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process. In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press, with little protection. Nor can the ban on election surveys be justified on the ground that there are other countries 78, according to the Solicitor General, while the dissent cites 28 - which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. In some countries, of which are no older nor more mature than the Philippines in political development, they do not restrict the publication of election survey results. The O 'Brien test could then be employed to determine the constitutional validity of 5.4. The United States Supreme Court, through Chief Justice Warren, held in United States v. O 'Brien: [A] Government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest. Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is "not unrelated to the Expression of free expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted governmental interest makes such interest "not related to the ELECTION CASES - MMCN

suppression of free expression." By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion takers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." The prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of the O 'Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, 5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. WHEREFORE, the petition for prohibited GRANTED and 5.4 of R.A. No. 9006 24(h) of COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional. ANG LADLAD VS. COMELEC DEL CASTILLO Facts: Petitioner is a national organization which represents the lesbians, gays, bisexuals, and transgenders. It filed a petition for accreditation as a party-list organization to public respondent. However, due to moral grounds, the latter denied the said petition. To buttress their denial, COMELEC cited certain biblical and quranic passages in their decision. It also stated that since their ways are immoral and contrary to public policy, they are considered nuissance. In fact, their acts are even punishable under the Revised Penal Code in its Article 201. A motion for reconsideration being denied, Petitioner filed this instant Petition on Certiorari under Rule 65 of the ROC. Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted violations of the Philippines international obligations against discrimination based on sexual orientation. In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by 9

COMELECs field personnel. Issue: WON Respondent violated the Non-establishment clause of the Constitution; WON Respondent erred in denying Petitioners application on moral and legal grounds. Held: Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, the enumeration of marginalized and under-represented sectors is not exclusive. The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941. Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. At bottom, what our nonestablishment clause calls for is government neutrality in religious matters. Clearly, governmental reliance on religious justification is inconsistent with this policy of neutrality. We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. Be it noted that government action must have a secular purpose. Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or morality, the remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability. As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. ABAYON PALPARAN VS THE HRET ABAD FACTS: Abayon and Palparan were the duly nominated party list representatives of AAngat Tayo and Bantay respectively. A quo warranto case was filed before the HRET assailing the jusridiction of HRET over the Party list.. and its representatives.. ELECTION CASES - MMCN

HRET dismissed the proceeding but upheld the jurisdiction over the nominated representatives who now seeks certiorari before the SC Issue:W/N HRET has jurisdiction over the question of qualifivcations of petitioners.. HELD: Affirmative. The HRET dismissed the petitions for quo warranto filed with it insofar as they sought the disqualifications of Aangat Tayo and Bantay. Since petitioners Abayon and Palparan were not elected into office but were chosen by their respective organizations under their internal rules, the HRET has no jurisdiction to inquire into and adjudicate their qualifications as nominees. Although it is the party-list organization that is voted for in the elections, it is not the organization that sits as and becomes a member of the House of Representatives. Section 5, Article VI of the Constitution, identifies who the members of that House are representatives of districts and party list Once elected, both the district representatives and the party-list representatives are treated in like manner. The Party-List System Act itself recognizes party-list nominees as members of the House of Representatives, a party-list representative is in every sense an elected member of the House of Representatives. Although the vote cast in a party-list election is a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate cases, would eventually sit in the House of Representatives. Both the Constitution and the Party-List System Act set the qualifications and grounds for disqualification of party-list nominees. Section 9 of R.A. 7941, echoing the Constitution. It is for the HRET to interpret the meaning of this particular qualification of a nomineethe need for him or her to be a bona fide member or a representative of his party-list organizationin the context of the facts that characterize petitioners Abayon and Palparans relation to Aangat Tayo and Bantay, respectively, and the marginalized and underrepresented interests that they presumably embody. By analogy with the cases of district representatives, once the party or organization of the party-list nominee has been proclaimed and the nominee has taken his oath and assumed office as member of the House of Representatives, the COMELECs jurisdiction over election contests relating to his qualifications ends and the HRETs own jurisdiction begins. The Court holds that respondent HRET did not gravely abuse its discretion when it dismissed the petitions for quo warranto against Aangat Tayo party-list and Bantay party-list but upheld its jurisdiction over the question of the qualifications of petitioners Abayon and Palparan. 4th 1.

AUTOMATED ELECTION

ROQUE VS COMELEC Velasco Facts: 10

This case is a motion for reconsideration filed by the petitioners of the September 10, 2009 ruling of the Supreme Court, which denied the petition of H. Harry L. Roque, Jr., et al. for certiorari, prohibition, and mandamus to nullify the contract-award of the 2010 Election Automation Project to the joint venture of Total Information Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic). In this MR, petitioners Roque, et al. are again before the Supreme Court asking that the contract award be declared null and void on the stated ground that it was made in violation of the Constitution, statutes, and jurisprudence. Intervening petitioner also interposed a similar motion, but only to pray that the Board of Election Inspectors be ordered to manually count the ballots after the printing and electronic transmission of the election returns. Petitioners Roque, et al., as movants herein, seek a reconsideration of the September 10, 2009 Decision on the following issues or grounds:

Reacting to the attribution, however, respondents TIM and Smartmatic, in their comment, described the Melo pronouncements as made in the context of Comelecs contingency plan. Petitioners, however, the same respondents added, put a misleading spin to the Melo pronouncements by reproducing part of the news item, but omitting to make reference to his succeeding statements to arrive at a clearer and true picture. Private respondents observation is well-taken. Indeed, it is easy to selectively cite portions of what has been said, sometimes out of their proper context, in order to assert a misleading conclusion. The effect can be dangerous. Improper meaning may be deliberately attached to innocent views or even occasional crude comments by the simple expediency of lifting them out of context from any publication. Petitioners posture anent the third issue, i.e, there no is legal framework to guide Comelec in the appreciation of automated ballots or to govern manual count should PCOS machines fail, cannot be accorded cogency. First, it glosses over the continuity and back-up plans that would be implemented in case the PCOS machines falter during the 2010 elections. The overall fallback strategy and options to address even the worst-case scenariothe wholesale breakdown of the 80,000 needed machines nationwide and of the 2,000 reserved unitshave been discussed in some detail in the Decision subject of this recourse. The Court need not belabor them again. While a motion for reconsideration may tend to dwell on issues already resolved in the decision sought to be reconsideredand this should not be an obstacle for a reconsiderationthe hard reality is that petitioners have failed to raise matters substantially plausible or compellingly persuasive to warrant the desired course of action. Significantly, petitioners, in support of their position on the lack-of-legal-framework issue, invoke the opinion of Associate, later Chief, Justice Artemio Panganiban in Loong v. Comelec, where he made the following observations: "Resort to manual appreciation of the ballots is precluded by the basic features of the automated election system," and "the rules laid down in the Omnibus Election Code (OEC) for the appreciation and counting of ballots cast in a manual election x x x are inappropriate, if not downright useless, to the proper appreciation and reading of the ballots used in the automated system." Without delving on its wisdom and validity, the view of Justice Panganiban thus cited came by way of a dissenting opinion. As such, it is without binding effect, a dissenting opinion being a mere expression of the individual view of a member of the Court or other collegial adjudicating body, while disagreeing with the conclusion held by the majority. And going to another but recycled issue, petitioners would have the Court invalidate the automation contract on the ground that the certifications submitted by Smartmatic during the bidding, showing that the PCOS technology has been used in elections abroad, do not comply with Sec. 1222 of RA 8436. Presently, petitioners assert that the system certified as having been used in New York was the Dominion Image Cast, a ballot marking device. Petitioners have obviously inserted, at this stage of the case, an entirely new factual dimension to their cause. This we cannot allow for compelling reasons. For starters, the Court cannot plausibly validate this factual assertion of petitioners. As it is, private respondents have even questioned the reliability of the website24 whence petitioners base their assertion, albeit the former, citing the same website, state that the Image Cast Precinct tabulation device refers to the Dominions PCOS machines. Moreover, as a matter of sound established practice, points of law, theories, issues, and arguments not raised in the original proceedings cannot be brought out on review. Basic considerations of fair play impel this rule. The imperatives of orderly, if not speedy, justice frown on a piecemeal presentation of evidence and on the practice of parties of going to trial haphazardly. 11

1. 2. 3. 4. 5. 6.

7.

The Comelecs public pronouncements show that there is a "high probability" that there will be failure of automated elections; Comelec abdicated its constitutional functions in favor of Smartmatic; There is no legal framework to guide the Comelec in appreciating automated ballots in case the PCOS machines fail; Respondents cannot comply with the requirements of RA 8436 for a source code review; Certifications submitted by private respondents as to the successful use of the machines in elections abroad do not fulfill the requirement of Sec. 12 of RA 8436; Private respondents will not be able to provide telecommunications facilities that will assure 100% communications coverage at all times during the conduct of the 2010 elections; and Subcontracting the manufacture of PCOS machines to Quisdi violates the Comelecs bidding rules.

Issue: Is the motion for reconsideration meritorious? Ruling: No. Upon taking a second hard look into the issues in the case at bar and the arguments earnestly pressed in the instant motions, the Court cannot grant the desired reconsideration. Petitioners threshold argument delves on possibilities, on matters that may or may not occur. The conjectural and speculative nature of the first issue raised is reflected in the very manner of its formulation and by statements, such as "the public pronouncements of public respondent COMELEC x x x clearly show that there is a high probability that there will be automated failure of elections"; "there is a high probability that the use of PCOS machines in the May 2010 elections will result in failure of elections"; "the unaddressed logistical nightmares and the lack of contingency plans that should have been crafted as a result of a pilot test make an automated failure of elections very probable"; and "COMELEC committed grave abuse of discretion when it signed x x x the contract for full automation x x x despite the likelihood of a failure of elections." Speculations and conjectures are not equivalent to proof; they have little, if any, probative value and, surely, cannot be the basis of a sound judgment. Petitioners, to support their speculative venture vis--vis the possibility of Comelec going manual, have attributed certain statements to respondent Comelec Chairman Melo, citing for the purpose a news item on Inquirer.net, posted September 16, 2009. ELECTION CASES - MMCN

Moving still to another issue, petitioners claim that "there are very strong indications that Private Respondents will not be able to provide for telecommunication facilities for areas without these facilities." This argument, being again highly speculative, is without evidentiary value and hardly provides a ground for the Court to nullify the automation contract. Surely, a possible breach of a contractual stipulation is not a legal reason to prematurely rescind, much less annul, the contract. Finally, petitioners argue that, based on news reports,28 the TIM-Smartmatic joint venture has entered into a new contract with Quisdi, a Shanghai-based company, to manufacture on its behalf the needed PCOS machines to fully automate the 2010 elections.29 This arrangement, petitioners aver, violates the bid rules proscribing sub-contracting of significant components of the automation project. The argument is untenable, based as it is again on news reports. Surely, petitioners cannot expect the Court to act on unverified reports foisted on it.

In our June 13, 2012 Decision, we decided in favor of respondents and placed a stamp of validity on the assailed resolutions and transactions entered into. Based on the AES Contract, we sustained the parties right to amend the same by extending the option period. Considering that the performance security had not been released to Smartmatic-TIM, the contract was still effective which can still be amended by the mutual agreement of the parties, such amendment being reduced in writing. To be sure, the option contract is embodied in the AES Contract whereby the Comelec was given the right to decide whether or not to buy the subject goods listed therein under the terms and conditions also agreed upon by the parties. As we simply held in the assailed decision: While the contract indeed specifically required the Comelec to notify Smartmatic-TIM of its OTP the subject goods until December 31, 2010, a reading of the other provisions of the AES contract would show that the parties are given the right to amend the contract which may include the period within which to exercise the option. There is, likewise, no prohibition on the extension of the period, provided that the contract is still effective.55 In interpreting Article 2.2 of the AES Contract, movants claim that the use of the word "surviving" and the phrase "without prejudice" suggests that the warranty provision and the OTP are covered by a different period and not by the term of the AES Contract. 56 We cannot subscribe to said postulation. Article 2.2 of the AES Contract reads: Article 2 EFFECTIVITY xxxx 2.2. The Term of this Contract begins from the date of effectivity until the release of the Performance Security, without prejudice to the surviving provisions of this Contract including the warranty provision as prescribed in Article 8.3 and the period of the option to purchase (Emphasis supplied). The provision means that the contract takes effect from the date of effectivity until the release of the performance security. Article 8 thereof, on the other hand, states when the performance security is released, to wit: Article 8 Performance Security and Warranty xxxx

CAPALLA v. COMELEC June 3, 2012 FACTS: On July 10, 2009, the Comelec and Smartmatic-TIM entered into a Contract for the Provision of an Automated Election System for the May 10, 2010 Synchronized National and Local Elections (AES Contract) which is a Contract of Lease with Option to Purchase (OTP) the goods listed therein consisting of the Precinct Count Optical Scan (PCOS), both software and hardware.5 The Comelec was given until December 31, 2010 within which to exercise the option but opted not to exercise the same except for 920 units of PCOS machines with the corresponding canvassing/consolidation system (CCS) for the special elections in certain areas in Basilan, Lanao del Sur and Bulacan.6 On March 6, 2012, the Comelec issued Resolution No. 9373 resolving to seriously consider exercising the OTP subject to certain conditions. 7 It issued another Resolution numbered 9376 resolving to exercise the OTP in accordance with the AES Contract. 8 On March 29, 2012, it issued Resolution No. 9377 resolving to accept Smartmatic-TIMs offer to extend the period to exercise the OTP until March 31, 2012.9 The Agreement on the Extension of the OTP under the AES Contract (Extension Agreement) was eventually signed on March 30, 2012. 10 Finally, it issued Resolution No. 9378 resolving to approve the Deed of Sale between the Comelec and Smartmatic-TIM to purchase the latters PCOS machines to be used in the upcoming 2013 elections.11 The Deed of Sale was forthwith executed.12 Claiming that the foregoing Comelec issuances and transactions entered pursuant thereto are illegal and unconstitutional, movants filed separate petitions for certiorari, prohibition and mandamus before the Court. HELD: Clearly, under the AES Contract, the Comelec was given until December 31, 2010 within which to exercise the OTP the subject goods listed therein including the PCOS machines. The option was, however, not exercised within said period. But the parties later entered into an extension agreement giving the Comelec until March 31, 2012 within which to exercise it. With the extension of the period, the Comelec validly exercised the option and eventually entered into a contract of sale of the subject goods. The extension of the option period, the subsequent exercise thereof, and the eventual execution of the Deed of Sale became the subjects of the petitions challenging their validity in light of the contractual stipulations of respondents and the provisions of RA 9184. ELECTION CASES - MMCN

Within seven (7) days from delivery by the PROVIDER to COMELEC of the Over-all Project Management Report after successful conduct of the May 10, 2010 elections, COMELEC shall release to the PROVIDER the above-mentioned Performance Security without need of demand. The performance security may, therefore, be released before December 31, 2010, the deadline set in the AES Contract within which the Comelec could exercise the option. The moment the performance security is released, the contract would have ceased to exist. However, since it is without prejudice to the surviving provisions of the contract, the warranty provision and the 12

period of the option to purchase survive even after the release of the performance security. While these surviving provisions may have different terms, in no way can we then consider the provision on the OTP separate from the main contract of lease such that it cannot be amended under Article 19. In this case, the contract is still effective because the performance security has not been released. Thus, not only the option and warranty provisions survive but the entire contract as well. In light of the contractual provisions, we, therefore, sustain the amendment of the option period. The amendment of a previously bidded contract is not per se invalid. For it to be nullified, the amendment must be substantial such that the other bidders were deprived of the terms and opportunities granted to the winning bidder after it won the same and that it is prejudicial to public interest. In our assailed decision, we found the amendment not substantial because no additional right was made available to Smartmatic-TIM that was not previously available to the other bidders; except for the extension of the option period, the exercise of the option was still subject to same terms and conditions such as the purchase price and the warranty provisions; and the amendment is more advantageous to the Comelec and the public. Movants seek the application of San Diego57 where we nullified the extension of the lease agreement and considered said amendment substantial. We, however, find the case inapplicable. The extension made in San Diego pertained to the period of the main contract of lease while in this case, the extension referred not to the main contract of lease of goods and services but to the period within which to exercise the OTP. In extending the original period of lease of five years to another five years without public bidding, the Municipality of Naujan, Province of Mindoro acted in violation of existing law. The period of lease undoubtedly was a vital and essential particular to the contract of lease. In San Diego, the Municipality of Naujan was the lessor of its municipal waters and the petitioner, the lessee. An extension of the lease contract would mean that the lessee would be given undue advantage because it would enjoy the lease of the property under the same terms and conditions for a longer period. Moreover, prior to the extension of the lease period, the rentals were reduced upon the request of the lessee. The end result was that the municipality was deprived of income by way of rentals because of the reduced rates and longer period of lease. In this case, the extension of the option period means that the Comelec had more time to determine the propriety of exercising the option. With the extension, the Comelec could acquire the subject PCOS machines under the same terms and conditions as earlier agreed upon.1wphi1 The end result is that the Comelec acquired the subject PCOS machines with its meager budget and was able to utilize the rentals paid for the 2010 elections as part of the purchase price. We maintain the view that the extension of the option period is an amendment to the AES Contract authorized by Article 19 thereof. As held in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:58 While we concede that a winning bidder is not precluded from modifying or amending certain provisions of the contract bidded upon, such changes must not constitute substantial or material amendments that would alter the basic parameters of the contract and would constitute a denial to the other bidders of the opportunity to bid on the same terms. Hence, the determination of whether or not a modification or amendment of a contract bidded out constitutes a substantial amendment rests on whether the contract, when taken as a whole, would contain substantially different terms and conditions that would have the effect of altering the technical and/or financial ELECTION CASES - MMCN

proposals previously submitted by other bidders. The alterations and modifications in the contract executed between the government and the winning bidder must be such as to render such executed contract to be an entirely different contract from the one that was bidded upon. 59 It must be pointed out that public biddings are held for the best protection of the public and to give the public the best possible advantages by means of open competition between the bidders, and to change them without complying with the bidding requirement would be against public policy.60 What are prohibited are modifications or amendments which give the winning bidder an edge or advantage over the other bidders who took part in the bidding, or which make the signed contract unfavorable to the government.61 In this case, as thoroughly discussed in our June 13, 2012 Decision, the extension of the option period and the eventual purchase of the subject goods resulted in more benefits and advantages to the government and to the public in general. While movants may have apprehensions on the effect to government contracts of allowing "advantage to the government" as justification for the absence of competitive public bidding, it must be stressed that the same reasoning could only be used under similar circumstances. The "advantage to the government," time and budget constraints, the application of the rules on valid amendment of government contracts, and the successful conduct of the May 2010 elections are among the factors looked into in arriving at the conclusion that the assailed Resolutions issued by the Comelec and the agreement and deed entered into between the Comelec and Smartmatic-TIM, are valid. Lastly, we need not further discuss the issues raised by movants on the alleged glitches of the subject PCOS machines, their compliance with the minimum system capabilities required by law, and the supposed abdication of the Comelecs exclusive power in the conduct of elections as these issues have been either thoroughly discussed in the assailed decision or in the earlier case of Roque, Jr. v. Commission on Elections.62 WHEREFORE, premises considered, the motions for reconsideration are DENIED for lack of merit. 2. RECALL

GARCIA v. COMELEC FACTS: Enrique T. Garcia was elected governor of Bataan in the 1992 elections. Some mayors, vicemayors and members of the Sangguniang Bayan of the twelve (12) municipalities of the province constituted themselves into a Preparatory Recall Assembly to initiate the recall election of petitioner Garcia. They issued Resolution No. 1 as formal initiation of the recall proceedings. COMELEC scheduled the recall election for the gubernatorial position of Bataan. Petitioners then filed a petition for certiorari and prohibition with writ of preliminary injunction to annul the Resolution of the COMELEC because the PRAC failed to comply with the "substantive and procedural requirement" laid down in Section 70 of R.A. 7160 (Local Government Code 1991). They pointed out the most fatal defect of the proceeding followed by the PRAC in passing the Resolution: the deliberate failure to send notices of the meeting to 65 members of the assembly. ISSUES: 1) Whether or not the people have the sole and exclusive right to initiate recall proceedings. 2) Whether or not the procedure for recall violated the right of elected local public officials 13

belonging to the political minority to equal protection of the law. RULING: 1) No. There is nothing in the Constitution that will remotely suggest that the people have the "sole and exclusive right to decide on whether to initiate a recall proceeding." The Constitution did not provide for any mode, let alone a single mode, of initiating recall elections. The mandate given by section 3 of Article X of the Constitution is for Congress to "enact a local government code which shall provide for a more responsive and accountable local government structure through a system of decentralization with effective mechanisms of recall, initiative, and referendum . . ." By this constitutional mandate, Congress was clearly given the power to choose the effective mechanisms of recall as its discernment dictates. What the Constitution simply required is that the mechanisms of recall, whether one or many, to be chosen by Congress should be effective. Using its constitutionally granted discretion, Congress deemed it wise to enact an alternative mode of initiating recall elections to supplement the former mode of initiation by direct action of the people. The legislative records reveal there were two (2) principal reasons why this alternative mode of initiating the recall process thru an assembly was adopted, viz: (a) to diminish the difficulty of initiating recall thru the direct action of the people; and (b) to cut down on its expenses. 2) No. Under the Sec. 70 of the LGC, all mayors, vice-mayors and sangguniang members of the municipalities and component cities are made members of the preparatory recall assembly at the provincial level. Its membership is not apportioned to political parties. No significance is given to the political affiliation of its members. Secondly, the preparatory recall assembly, at the provincial level includes all the elected officials in the province concerned. Considering their number, the greater probability is that no one political party can control its majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a locally elected public official is loss of confidence of the people. The members of the PRAC are in the PRAC not in representation of their political parties but as representatives of the people. By necessary implication, loss of confidence cannot be premised on mere differences in political party affiliation. Indeed, our Constitution encourages multi-party system for the existence of opposition parties is indispensable to the growth and nurture of democratic system. Clearly then, the law as crafted cannot be faulted for discriminating against local officials belonging to the minority. Moreover, the law instituted safeguards to assure that the initiation of the recall process by a preparatory recall assembly will not be corrupted by extraneous influences. We held that notice to all the members of the recall assembly is a condition sine qua non to the validity of its proceedings. The law also requires a qualified majority of all the preparatory recall assembly members to convene in session and in a public place. Needless to state, compliance with these requirements is necessary, otherwise, there will be no valid resolution of recall which can be given due course by the COMELEC. CLAUDIO v. COMELEC G.R. 140560. May 4, 2000 FACTS

Limitations on Recall. - (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election. xxxx The COMELEC granted the petition. It ruled that the petition did not violate the oneyear ban because the petition was filed on 2 July 1999, one day after Claudios assumption of office.

ISSUES 1. WoN the word recall in Sec. 74(b), LGC covers a process which includes the convening of the Preparatory Recall Assembly and its approval of the recall resolution. 2. WoN the term "regular local election" in the last clause of Sec. 74(b), LGC includes the election period for that regular election or simply the date of such election. HELD/RATIO 1. The word recall in Sec. 74(b), LGC refers to the to the election itself by means of which voters decided whether they shall retain their local official or elect his replacement. Recall is a process which involves the following steps: (1) the convening of the preparatory assembly or gathering of the signatures of at least 25% registered voters in the LGU; (2) the filing of the recall resolution or petition with the COMELEC; (3) the verification of the resolution or petition; (4) fixing of the date of the recall election; and (5) holding of the election. That the word recall used in Sec. 74(b), LGC, refers to the recall election itself is due to the following reasons: (1) Sec. 69, LGC provides that the power of recall shall be exercised by the registered voters of the LGU to which the local elective official belongs. It is clear that the power of recall referred to in Sec. 69 is the power to retain/replace officials and not the power to initiate recall proceedings. Thus, the limitations under Sec. 74 (Limitations on Recall) apply only to the recall elections. In Garcia v. COMELEC, the delegation of the power to initiate recall proceedings from the electorate to the PRAs was questioned. The Supreme Court held that what the Constitution gave to the people is the power to recall and not the power to initiate the recall proceedings. The holding of the PRA is not the recall itself. (2) That the word recall refers to the recall election is consistent with the purposes1 of the limitations on recall.

Jovito Claudio was the duly elected mayor of Pasay City during the 11 May 1998 elections. He assumed office on 1 July 1998. On 19 May 1999, an ad hoc committee was formed for the purpose of convening a Preparatory Recall Assembly (PRA). On 29 May 1999, majority of the members of the PRA adopted a Resolution to Initiate the Recall of Mayor Jovito Claudio for Loss of Confidence. On 2 July 1999, the petition for recall was formally submitted to the Office of the Election Officer. Copies of the petition were posted in public places in Pasay City and the authenticity of the signatures therein was verified by the election officer for Pasay City. The petition was opposed on several grounds. Principally, that the convening of the PRA took place within the one-year prohibited period under Sec. 74, LGC which provides:

(1) that no recall shall take place within one year from the date of assumption of office of the official concerned; and (2) that no recall shall take place within one year immediately preceding a regular local election.
14

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The purpose of the first limitation is to provide a reasonable basis for judging the performance of the official (Angobung v. COMELEC). This judgment is not given during the preliminary proceedings (such as the convening of the PRA) but through the vote during the recall election itself. (3) That the word recall refers to the recall election is to uphold the constitutional rights of speech and freedom of assembly of PRA members. To hold that limitation includes the formation of opinion through public discussions on the matter of recall of an official is to curtail these constitutional rights. 2. The term regular elections does not include the election period. To construe the word regular elections as including the election period would emasculate the right of the people to exercise the power of recall. In Paras v. COMELEC, the Supreme Court held that the limitations on Sec. 74 (a) and Sec. 74 (b) would mean that a local elective official may be subject only to recall during the second year of his/her term (in this case, from 1 July 1999 to mid-May 2000) If the regular elections mentioned in Sec. 74(b) would include the election period, which commences 90 days from the date of the election and extends to 30 days thereafter, the period during which the power of recall may be exercised will be reduced even more. (in this case, from 1 July 1999 to mid-February 2000) HELD/RATIO Petition DISMISSED. 3. FAILURE OF ELECTION/ SPECIAL ELECTION

found nothing therein that could support an action for declaration of failure of elections. He never alleged at all that elections were either not held or suspended. Furthermore, petitioner's claim of failure to elect stood as a bare conclusion bereft of any substantive support to describe just exactly how the failure to elect came about. DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B. BIRUAR, ALONTO B. DAUDIE, MICHAEKL B. DIRANGAREN, ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M. ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. DATU-MANONG, FREDDIE G. MANGUDADATU and ABBAS A. PENDATUN, JR., petitioners, vs. COMMISSION ON ELECTIONS, DATU ZACARIA A. CANDAO, DATU NORODIN M. MATALAM, KHARIS M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT IBAY, PATULA O. TIOLO, MARHOMSAL K. LAUBAN, MENTANG T. KABAGANI, ELIZABETH C. MASUKAT, GAPOR A. RAJAMUDA, SAID S. SALIK and LINTATO G. SANDIGAN, respondents. DECISION PARDO, J.: The case is a petition for certiorari and prohibition under Rule 64 in relation to Rule 65 of the Revised Rules of Court with preliminary injunction or temporary restraining order[1] to nullify and set aside two (2) orders dated July 26, 2001[2] and August 28, 2001[3] of the Commission on Elections (COMELEC), ordering a random technical examination of pertinent election paraphernalia and other documents in several municipalities in the province of Maguindanao to determine a failure of elections. Petitioners[4] and respondents[5] were candidates for the provincial elective positions in the province of Maguindanao in the May 14, 2001 election. Petitioner Ampatuan and respondent Candao contended for the position of governor. The slate of Ampatuan emerged as winners as per election returns. On May 23, 2001, respondents filed a petition with the Comelec for the annulment of election results and/or declaration of failure of elections[6] in several municipalities[7] in the province of Maguindanao. They claimed that the elections were completely sham and farcical. The ballots were filled-up en masse by a few persons the night before election day, and in some precincts, the ballot boxes, official ballots and other election paraphernalia were not delivered at all.[8] On May 25, 2001, the Comelec issued an order suspending the proclamation of the winning candidates for congressman of the second district, governor, vice-governor and board members of Maguindanao.[9] On May 30, 2001, petitioners filed with the Comelec a motion to lift the suspension of proclamation.[10] On June 14, 2001, the Comelec issued an order lifting the suspension of proclamation of the winning candidates for governor, vice-governor and board members of the first and second districts.[11] Consequently, the Provincial Board of Canvassers proclaimed petitioners winners.[12] On June 16, 2001, respondents filed with the Supreme Court a petition to set aside the Comelec order dated June 14, 2001, and preliminary injunction to suspend the effects of the proclamation of the petitioners.[13][14] Meantime, petitioners assumed their respective offices on June 30, 2001. On July 17, 2001, the Court resolved to deny respondents petition. Petitioners assumption into office notwithstanding, on July 26, 2001, the Comelec ordered the consolidation of respondents petition for declaration of failure of elections with SPA Nos. 01 -244, 01-332, 01-360, 01-388 and 01-390.[15] The COMELEC further ordered a random technical examination on four to seven precincts per municipality on the thumb-marks and signatures of the voters who voted and affixed in their voters registration records, and forthwith directed the production of relevant election documents in these municipalities.[16] 15

Joseph Peter Sison v. COMELEC, G.R. No. 134096, March 3, 1999 Facts: It appears that while the election returns were being canvassed by the Quezon City Board of Canvassers but before the winning candidates were proclaimed, petitioner commenced suit before the COMELEC by filing a petition seeking to suspend the canvassing of votes and/or proclamation in Quezon City and to declare a failure of elections. The said petition was supposedly filed pursuant to Section 63 of the Omnibus Election Code (Batas Pambansa Blg. 881, as amended) on the ground of "massive and orchestrated fraud and acts analogous thereto which occurred after the voting and during the preparation of election returns and in the custody or canvass thereof, which resulted in a failure to elect."4 While the petition was pending before the COMELEC, the City Board of Canvassers proclaimed the winners of the elections in Quezon City, including the winning candidate for the post of vice mayor. On June 22, 1998, the COMELEC promulgated its challenged resolution dismissing the petition before it on the ground (1) that the allegations therein were not supported by sufficient evidence, and (2) the grounds recited were not among the pre-proclamation issues set forth in Section 17 of Republic Act No. 7166 Issue: WON the grounds are valid? Ruling: Under the pertinent codal provision of the Omnibus Election Code, there are only three (3) instances where a failure of elections may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election result in a failure to elect on account of force majuere, violence, terrorism , fraud, or other analogous causes. We have painstakingly examined petitioner's petition before the COMELEC but ELECTION CASES - MMCN

On August 28, 2001, the Comelec issued another order[17] directing the continuation of the hearing and disposition of the consolidated SPAs on the failure of elections and other incidents related thereto. It likewise ordered the continuation of the technical examination of election documents as authorized in the July 26, 2001 order. On September 27, 2001, the Comelec issued an order outlining the procedure to be followed in the technical examination.[18] On September 26, 2001, petitioners filed the present petition.[19] They claimed that by virtue of their proclamation pursuant to the June 14, 2001 order issued by the Comelec, the proper remedy available to respondents was not a petition for declaration of failure of elections but an election protest. The former is heard summarily while the latter involves a full-blown trial. Petitioners argued that the manner by which the technical examination is to be conducted[20] would defeat the summary nature of a petition for declaration of failure of elections. On October 5, 2001, petitioners filed a motion[21] reiterating their request for a temporary restraining order to enjoin the implementation of the July 26, 2001 and August 28, 2001 Comelec orders. On October 22, 2001, the Comelec issued an order suspending the implementation of the two (2) assailed orders, the pertinent portion of which reads as follows: The Commission, in view of the pendency of G. R. No. 149803 xxx, requiring it to comment within ten (10) days from notice, hereby suspends implementation of its orders of July 26, 2001 and August 28, 2001 in deference to the resolution of said court.[22] However, on November 13, 2001, the Comelec issued another order lifting the suspension.[23] On November 20, 2001, we issued a temporary restraining order, to wit: xxx the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER prayed for, effective immediately and continuing until further orders from this Court, ordering the respondent Commission on Elections to CEASE and DESIST from ordering the lifting of the suspended implementation orders dated 26 July 2001 and 28 August 2001 in SPA No. 01-323 xxx.[24] The main issue to be resolved is whether the Commission on Elections was divested of its jurisdiction to hear and decide respondents petition for declaration of failure of elections after petitioners had been proclaimed. We deny the petition. Petitioners submit that by virtue of their proclamation as winners, the only remedy left for private respondents is to file an election protest, in which case, original jurisdiction lies with the regular courts. Petitioners cited several rulings that an election protest is the proper remedy for a losing candidate after the proclamation of the winning candidate.[25] However, the authorities petitioners relied upon involved pre-proclamation controversies. In Loong v. Commission on Elections,[26] we ruled that a pre-proclamation controversy is not the same as an action for annulment of election results, or failure of elections. These two remedies were more specifically distinguished in this wise: While, however, the Comelec is restricted, in pre-proclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, the Comelec is duty bound to investigate allegations of fraud, terrorism, violence, and other analogous causes in actions for annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the Comelec, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and ELECTION CASES - MMCN

analyze voters signatures and thumbprints in order to determine whether or not the elections had indeed been free, honest and clean.[27] The fact that a candidate proclaimed has assumed office does not deprive the Comelec of its authority to annul any canvass and illegal proclamation.[28] In the case at bar, we cannot assume that petitioners proclamation and assumption into office on June 30, 2001, was legal precisely because the conduct by which the elections were held was put in issue by respondents in their petition for annulment of election results and/or declaration of failure of elections. Respondents allegation of massive fraud and terrorism that attended the May 14, 2001 election in the affected municipalities cannot be taken lightly as to warrant the dismissal of their petition by the Comelec on the simple pretext that petitioners had been proclaimed winners. We are not unmindful of the fact that a pattern of conduct observed in past elections has been the pernicious grab-the-proclamation-prolong-the-protest slogan of some candidates or parties such that even if the protestant wins, it becomes a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired. xxx We have but to reiterate the oft -cited rule that the validity of a proclamation may be challenged even after the irregularly proclaimed candidate has assumed office.[29] Petitioners likewise rely on the case of Typoco, Jr. v. Commission on Elections.[30] This Court held that Comelec committed no grave abuse of discretion in dismissing a petition for declaration of failure of elections. However, we made a pronouncement that the dismissal was proper since the allegations in the petition did not justify a declaration of failure of elections. Typocos relief was for Comelec to order a recount of the votes cast, on account of the falsified election returns, which is properly the subject of an election contest.[31] Respondents petition for declaration of failure of elections, from which the present case arose, exhaustively alleged massive fraud and terrorism that, if proven, could warrant a declaration of failure of elections. Thus: 4.1. The elections in at least eight (8) other municipalities xxx were completely sham and farcical. There was a total failure of elections in these municipalities, in that in most of these municipalities, no actual voting was done by the real, legitimate voters on election day itself but voting was made only by few persons who prepared in advance, and en masse, the ballots the day or the night before election and, in many precincts, there was completely no voting because of the non-delivery of ballot boxes, official ballots and other election paraphernalia; and in certain municipalities, while some semblance of voting was conducted on election day, there was widespread fraudulent counting and/or counting under very irregular circumstances and/or tampering and manufacture of election returns which completely bastardized the sovereign will of the people. These illegal and fraudulent acts of desecration of the electoral process were perpetrated to favor and benefit respondents. These acts were, by and large, committed with the aid and/or direct participation of military elements who were deployed to harass, intimidate or coerce voters and the supporters or constituents of herein petitioners, principally, of reelectionist Governor Datu Zacaria Candao. Military units and personnel visibly, openly and flagrantly violated election laws and regulations by escorting people or elements engaged in the illegal, advanced preparation of ballots and election returns and, at times, manning the polling places or precincts themselves and/or staying within the prohibited radius. Ballot boxes and other election paraphernalia were brought not to the precincts or voting centers concerned but somewhere else where massive manufacture of ballots and election documents were perpetrated.[32] The Comelec en banc has the authority to annul election results and/or declare a failure of elections.[33] Section 6 of the Omnibus Election Code further provides that: Section 6. Failure of election.- If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting 16

and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election of failure to elect. Elucidating on the concept of failure of election, we held that: xxx before Comelec can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; and second, the votes cast would affect the result of the election. In Loong vs. Commission on Elections, this Court added that the cause of such failure of election should have been any of the following: force majeure, violence, terrorism, fraud or other analogous cases.[34] In another case, we ruled that while it may be true that election did take place, the irregularities that marred the counting of votes and the canvassing of the election returns resulted in a failure to elect.[35] In the case at bar, the Comelec is duty-bound to conduct an investigation as to the veracity of respondents allegations of massive fraud and terrorism that attended the conduct of the May 14, 2001 election. It is well to stress that the Comelec has started conducting the technical examination on November 16, 2001. However, by an urgent motion for a temporary restraining order filed by petitioners, in virtue of which we issued a temporary restraining order on November 20, 2001, the technical examination was held in abeyance until the present. In order not to frustrate the ends of justice, we lift the temporary restraining order and allow the technical examination to proceed with deliberate dispatch. WHEREFORE, the petition is hereby DISMISSED. The temporary restraining order issued on November 20, 2001 is DISSOLVED. The Commission on Elections is directed to proceed with the hearing of the consolidated petitions and the technical examination as outlined in its September 27, 2001 order with deliberate dispatch. No costs. SO ORDERED.

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